LawPulse

Gimme shelter

Animal law, and, in particular, laws governing animal shelters and animal welfare work, is evolving rapidly. In "Give me shelter," published in the December 2010 issue of ISBA's Animal Law Section newsletter, Jane McBride provides the first installment of an overview of legal issues that public and private animal shelters face.

Public trusts

Public animal shelters, McBride says, are typically administered by a local health or police department and are subject to local governmental law. Private animal shelters on the other hand, are generally organized as nonprofit, tax-exempt corporations under section 501(c)(3) of the Internal Revenue Code after stating on their 501(c)(3) applications that their mission is the prevention of cruelty of animals and includes education and community outreach.

Private shelters in Illinois must also register with the Illinois Department of Agriculture and the attorney general's Office of Charitable Trusts. The latter, McBride says, oversees compliance with rules governing public trusts.

Where the guidance in those statutes seems unclear or insufficient, she believes that shelter officials should bear in mind that their organizations are public trusts. Commenting on the recent trend of "puppy mill" legislative enactments, such as PA 96-1470, which amended the Animal Welfare Act to impose additional disclosure requirements for shelters as well as pet shops, she says, "It is very important that shelters be aware of the new licensing, standard of care and disclosure requirements included in such legislation."

Shelters are also subject to other local, state, and federal disclosure reporting and posting regulations. IRS Form 990, Tax Return of Organization Exempt from Income Tax, for example, which requires extensive compilation and reporting of an organization's funding, structure, and activities, must be on display and available to the public at all times, McBride writes. Shelters must also keep intake, adoption, and euthanasia statistics under state and local laws.

To best serve the maximum number of animals, McBride says, shelters should manage risk by purchasing insurance, including general liability, directors' and officers', and workers' compensation, by making sure that the veterinarians that work with them are covered by malpractice insurance, and by developing and implementing their own best practices.

"Non-profit risk management addresses many risks that are not insurable - such as, the potential loss of tax exempt status, public good will, and continuing donor support," she said. "Harm to a shelter's reputation - be it due to an accident with an animal, a disease outbreak, or a mishap with a controlled substance - is absolutely devastating to an entity which is wholly dependent on donations."

The question of ownership

McBride also addresses ownership of shelter animals and requirements for services for them. The ownership status of animals arriving at a shelter is unsettled until the shelter takes certain steps, she writes. Because that status determines what medical services the shelter may provide them, it's imperative for shelter staff to know those steps and take them immediately upon animals' arrival.

State and local law generally require animals to be held for a certain period until the owners are notified, if the animals have identification tags or microchips, or have the opportunity to come in to claim them. After that period, ownership vests in the shelter, which then has complete discretion over what to do with the animals. In some cases, public animal shelters that receive stray animals may bear those administrative processing burdens and then transfer the animals' ownership to private shelters.

Section 2.06 of the statute, in turn, defines "owner" to include any person who has an animal in his care or acts as custodian of an animal in addition to anyone with a right of property in an animal. Shelters, therefore, have the same legal duties toward animals as do their owners.

As long as an animal's ownership remains unsettled, however, a shelter may not take the discretionary actions of spaying or neutering the animal, McBride says. Furthermore, "surgery may only be performed if it is necessary to save the animal's life or if it is absolutely necessary to prevent suffering." Additionally, McBride points out that "with the responsibility of treating the animal comes the responsibility of addressing any adverse effects that may occur due to treatment."